In recent years, transactional lawyers have watched as more and more dealings went digital – from sale of goods contracts, to real estate transactions and beyond. So, many argue, it is only a matter of time before estate planning follows suit.
As it stands, the law in Florida states that, for a will to be valid, it must be (1) written, i.e. typed or printed (holographic, or handwritten, wills are not valid in Florida) on paper, (2) signed by the person making it (known as the “testator”) (3) in the presence of two witnesses. Every state imposes some version of these same requirements, known as will formalities, to deter tampering or fraud.
That almost changed this year. On May 5, 2017, the House and Senate passed House Bill 277, known as the “Florida Electronic Wills Act” (See Footnote 1). The statute proposed to regulate electronic wills, i.e. wills that are prepared, executed, and stored entirely on digital platforms, by leveraging new technology such as video conferencing to fulfill the presence requirement using remote witnesses. In what many thought would be unlikely move by Governor Rick Scott, he vetoed the bill on June 26th, 2017 citing several concerns including the ability of notaries to properly authenticate identities remotely.
If HB 277 had been signed into law, Florida would have been only the second state in the U.S. to enact an electronic wills statute (See Footnote 2). The reluctance by states to make the leap, despite strong market demand for digitization, is due in large part to the serious and legitimate concerns voiced by lawyers, legislators, and now Governor Scott, regarding authentication.
The physical presence requirement, which is intended to protect the testator from undue influence and prevent future will contests, accomplishes the intended goal by having two witnesses and a notary attest to the fact that the testator is who they say they are and does not appear to be incapacitated or acting under duress at the time the will is signed. Whether a video conference affords the same degree of authentication is hotly debated and remains to be seen.
Hacking and document destruction are also major concerns when it comes to electronic wills. As we know, websites are frequent victims of hacking, so it’s only natural that the thought of massive cloud-based archives of documents containing extremely sensitive personal and financial information would make people uneasy.
However, proponents of electronic wills contend that their benefits outweigh the risks. According to a Gallup Poll from 2016, a jaw-dropping fifty-five percent (55%) of Americans do not have a will. Electronic wills, by making the process faster and less expensive, arguably make it more feasible for those less fortunate to create an estate plan. Some argue that if this increased access does indeed result in less people dying intestate, i.e. without a will, judicial efficiency will be served because there will be less estate disputes, thus saving the courts time and taxpayer money.
Another frequently-cited advantage of electronic wills is the ease with which the testator would be able to make changes – they would simply log in, make the desired amendments and log out. The document’s metadata, which can later be reviewed, would contain a log all interactions with or alterations to the original file, such as records of when and who accessed or edited the document.
While we cannot deny that electronic wills represent the future of estate planning, we are somewhat relieved that the Florida Electronic Wills Act, as it is currently written, was not signed into law this week. There are just too many issues that, if left unresolved, could flood the courts with will contests due to improper authentication. Until those kinks are worked out, we must resist the urge to put the horse before the cart.
House Bill – https://www.flsenate.gov/Session/Bill/2017/00277
Senate Bill – https://www.flsenate.gov/Session/Bill/2017/206/ByVersion
Gallup Poll: http://www.gallup.com/poll/191651/majority-not.aspx
(1) To read the full next of the House Bill, see https://www.flsenate.gov/Session/Bill/2017/00277. For the Senate Bill, see https://www.flsenate.gov/Session/Bill/2017/206/ByVersion.
(2) Nevada’s electronic wills statute has been on the books since 2001. See Nev. Rev. Stat. 133.085.